Federal Tort Claims Act Statute of Limitations: Complete Guide

Last Updated: September 5, 2026

The Federal Tort Claims Act statute of limitations is one of the most critical aspects of filing a medical malpractice claim against the U.S. Government. Missing the deadline can permanently bar your claim, regardless of how strong your case may be. This comprehensive guide explains everything you need to know about FTCA time limits.

What is the Federal Tort Claims Act Statute of Limitations?

The Federal Tort Claims Act (FTCA) has a strict two-year deadline. Under 28 U.S.C. § 2401(b), you must present your administrative claim to the appropriate federal agency within two years of the date your claim accrues.

The statute reads:

"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues..."

You have 24 months to file your Standard Form 95 (SF-95) with the correct government agency.

What Does 28 U.S.C. § 2401 Say? (§ 2401(a) vs. § 2401(b))

28 U.S.C. § 2401 sets two different deadlines for suing the United States, and only subsection (b) governs tort claims. Section 2401(a) is the general six-year limit for most civil actions against the government. Section 2401(b) is the FTCA-specific rule: two years to present an administrative claim, then six months to sue after a denial. Veterans and servicemembers pursuing VA or military malpractice claims are governed by § 2401(b), not § 2401(a).

Here is the statutory text in full, from 28 U.S.C. § 2401:

§ 2401(a): "Except as provided by chapter 71 of title 41, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases."

§ 2401(b): "A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented."

Because § 2401(b) contains two separate deadlines, a claim can be lost twice: once by presenting the SF-95 more than two years after accrual, and again by waiting more than six months after the agency mails its final denial.

Who Is Eligible to File an FTCA Claim?

An FTCA claim may be filed by the injured person, that person's duly authorized agent or legal representative, or — where the negligence caused a death — by the executor or administrator of the estate or anyone else entitled to bring the claim under state law (28 C.F.R. § 14.3). You do not have to be a veteran, and you do not have to be a U.S. citizen.

What matters is the nature of the claim, not the identity of the claimant — the same two-year rule governs anyone suing the federal government in tort, veteran or not. Under 28 U.S.C. § 1346(b)(1), the United States is liable only where a private person would be liable under the law of the state where the act or omission occurred, and only where the harm was caused by a federal employee acting within the scope of their employment. Three eligibility limits do most of the work in practice:

• Federal employee, not a contractor. The FTCA reaches federal employees. Independent contractors are generally excluded by 28 U.S.C. § 2671, though VA community-care providers can be a difficult and fact-specific exception — see the Brian Tally Act and VA contractor status.
• Not barred by the Feres doctrine. Feres v. United States, 340 U.S. 135 (1950), bars claims by active-duty servicemembers for injuries incident to service. It does not bar a veteran's claim over VA care received after separation, and it does not bar claims by dependents or retirees.
• Not within a § 2680 exception. 28 U.S.C. § 2680 removes whole categories from the waiver, including discretionary functions (§ 2680(a)) and most intentional torts (§ 2680(h)).

Eligibility to file is separate from the deadline to file. Even an eligible claimant loses the claim by missing the two-year presentment deadline in § 2401(b), and the agency must receive a claim that states a sum certain before the claim counts as presented at all (28 U.S.C. § 2675).

What Is the Statute of Limitations Under the Tucker Act?

Six years. 28 U.S.C. § 2501 bars any claim in the U.S. Court of Federal Claims "unless the petition thereon is filed within six years after such claim first accrues." That is a different court, a different statute and a different deadline from the FTCA — and the Tucker Act cannot be used for a malpractice claim.

The Tucker Act (28 U.S.C. § 1491) gives the Court of Federal Claims jurisdiction over claims founded on the Constitution, an act of Congress, a regulation, or a contract with the United States — and it expressly excludes "cases sounding in tort." Medical negligence is a tort, so a VA or military malpractice claim runs through the FTCA under § 2401(b), never through § 2501.

When Does the FTCA Clock Start?

Understanding when your claim "accrues" is essential. Generally, the FTCA statute of limitations begins to run when:

1. You are injured, or
2. You discover (or reasonably should have discovered) the injury and its cause

This is known as the "discovery rule." In medical malpractice cases, the clock may not start until you discover that your injury was caused by medical negligence.

Examples of Claim Accrual

• Surgical error discovered immediately: The statute runs from the date of surgery
• Delayed diagnosis: The statute may run from when you learned of the correct diagnosis
• Birth injury: May accrue when parents learn the injury was preventable
• Misread lab results: Accrues when the error is discovered or should have been discovered

Because accrual and injury are often different dates, the two-year period rarely runs from the date you assume. The FTCA deadline calculator accepts an injury date and a later discovery date separately, so you can see how the discovery rule moves your SF-95 deadline.

What is the FTCA?

The Federal Tort Claims Act is a federal law that waives the government's sovereign immunity, allowing individuals to sue the United States for certain torts committed by federal employees. Before the FTCA, you generally could not sue the federal government.

The FTCA applies to medical malpractice claims involving:

• VA hospitals and clinics (Department of Veterans Affairs)
• Military treatment facilities (Army, Navy, Air Force, Marine Corps hospitals)
• Federal prisons and detention facilities
• Indian Health Service facilities
• Other federal medical facilities

Statute of Limitations vs. Statute of Repose

It's important to understand the difference between these two concepts:

Statute of Limitations

• Determines how long you have to file a claim after an injury
• Typically runs from the date of injury or discovery
• Under the FTCA: 2 years from accrual

Statute of Repose

• Sets an absolute outside deadline regardless of when injury was discovered
• In many states, medical malpractice claims have a statute of repose
• The FTCA does not have a federal statute of repose, though state law may apply in certain circumstances

While the FTCA itself does not contain a statute of repose, the law requires that FTCA claims be governed by the law of the state where the negligent act occurred. Some states have statutes of repose for medical malpractice that could potentially affect FTCA claims.

The Administrative Claim Process

Before filing suit, you must exhaust administrative remedies. This is a mandatory step under the FTCA.

Step 1: File Your SF-95

Present your claim using Standard Form 95 (SF-95) to the appropriate federal agency. For VA medical malpractice, file with the VA. For military hospital malpractice, file with the appropriate branch (Army, Navy, Air Force).

Step 2: Agency Review

The agency has 6 months to respond to your claim. They may:

• Deny your claim
• Offer a settlement
• Request additional information
• Take no action — after 6 months you may treat the claim as denied (28 U.S.C. § 2675(a))

Step 3: File Lawsuit (If Necessary)

If the agency mails you a written final denial, you have 6 months from the date of mailing to file suit in federal court — 28 U.S.C. § 2401(b) measures that window from the mailing date, not from the day you received the letter.

If the agency simply never responds, no six-month clock starts. Section 2675(a) creates an option for the claimant, not a deadline: the failure of an agency to make final disposition within six months "shall, at the option of the claimant any time thereafter, be deemed a final denial." After those six months you may treat the silence as a denial and sue — but until the agency actually mails a final denial, the claim stays open and the § 2401(b) suit window has not begun. Do not assume an unanswered claim has expired.

Important: The 6-month deadline to file suit is separate from the 2-year deadline to file the administrative claim. One trap worth knowing: under 38 C.F.R. § 14.604(c), amending a pending claim gives VA a fresh six months, and the claimant's option under § 2675(a) does not accrue until six months after the amendment is filed.

Common Mistakes That Can Bar Your Claim

1. Missing the 2-Year Deadline

The most common and fatal mistake. Even being one day late can bar your claim forever.

2. Filing with the Wrong Agency

Your claim must be presented to the correct federal agency. Filing with the wrong agency does not toll the statute of limitations.

3. Incomplete SF-95 Forms

A claim that does not include a "sum certain" (specific dollar amount) may not be considered a valid claim for statute of limitations purposes.

4. Waiting Too Long After Discovery

If you discover an injury, don't delay. The statute may be running even if you're uncertain about the cause.

Tolling the Statute of Limitations

The FTCA's deadlines can be equitably tolled. In United States v. Kwai Fun Wong, 575 U.S. 402 (2015), the Supreme Court held that the time limits in 28 U.S.C. § 2401(b) are not jurisdictional and are subject to equitable tolling. The Court explained that the phrase "shall be forever barred" is "an ordinary (albeit old-fashioned) way of setting a deadline" and does not strip courts of the power to toll it. This overruled the long-held assumption — still repeated on many legal websites — that a missed FTCA deadline is automatically and permanently fatal.

That said, equitable tolling is granted sparingly. A claimant generally must show both that they pursued their rights diligently and that some extraordinary circumstance stood in the way of timely filing. Circumstances courts have considered include:

Minor Children

If a claim involves a minor, the statute may be tolled until they turn 18 (the age of majority in most states). However, this varies by state law and situation.

Mental Incapacity

If the claimant is mentally incapacitated, the statute may be tolled during the period of incapacity.

Fraudulent Concealment

If the government actively concealed information that prevented you from discovering your claim, the statute may be tolled.

Note: Tolling is the exception, not the rule, and courts apply it narrowly. Never assume your deadline will be tolled — but if your deadline has already passed, do not assume your claim is dead either. Contact an FTCA attorney immediately so the question can be evaluated on the facts.

Does a 38 U.S.C. § 1151 VA Benefits Claim Have the Same Deadline?

No. A 38 U.S.C. § 1151 claim is a VA disability-compensation claim, not an FTCA lawsuit — and it has no statute of limitations. A former 2-year filing requirement in § 1151 was repealed by Congress in 1962, and neither the statute nor VA's current guidance sets any filing deadline today. Only the separate FTCA claim for the same VA-caused injury carries the strict 2-year deadline described above.

Veterans can often pursue both claims for the same VA-caused injury, though an FTCA settlement can offset ongoing § 1151 payments. For the full rules on coordinating the two — including how the offset works — see our guide on VA malpractice settlements and VA disability benefits.

Can You Get Punitive Damages Under the FTCA?

No. 28 U.S.C. § 2674 makes the United States liable "in the same manner and to the same extent as a private individual under like circumstances," but expressly provides that it "shall not be liable for interest prior to judgment or for punitive damages." An FTCA claim recovers compensatory damages only — the losses you can actually document.

There is one narrow exception, written into the same section: if the death occurred in a state whose wrongful-death law provides only punitive damages, the United States is instead liable for actual or compensatory damages measured by the pecuniary injuries resulting from the death.

Because punitive damages are off the table, the documented compensatory record — treatment costs, wage loss, future care needs — is what determines the value of a VA malpractice claim. Attorney fees on that recovery are separately capped by 28 U.S.C. § 2678 at 20% of an administrative settlement and 25% of a court award.

Why You Need an Experienced FTCA Attorney

FTCA claims are complex and unforgiving. Unlike typical personal injury cases, you're suing the federal government, which has significant legal resources and strict procedural requirements.

An experienced FTCA attorney can:

• Correctly calculate your statute of limitations
• Properly complete and file your SF-95
• Navigate the administrative process
• Meet all deadlines
• Build a strong case for maximum compensation

The Archuleta Law Firm has over 25 years of experience handling FTCA medical malpractice claims against the VA and military hospitals. We understand the complexities of these cases and the importance of meeting all deadlines.

Take Action Now

If medical malpractice at a VA hospital or military treatment facility harmed you or a loved one, act fast. The 2-year statute of limitations is strictly enforced.

Contact our office today for a free case evaluation. We can review your situation, determine if you have a valid claim, and ensure all deadlines are met.

Call us now at 1-800-798-9529 or complete our online form.

Frequently Asked Questions

How long do I have to file an FTCA claim?

You have 2 years from the date your claim accrues (typically the date of injury or discovery) to file an administrative claim with the appropriate federal agency.

Can I sue the VA for medical malpractice?

Yes, you can file a claim against the VA under the Federal Tort Claims Act. You must first file an administrative claim and exhaust your remedies before filing a lawsuit.

What happens if I miss the FTCA deadline?

If you miss the 2-year administrative deadline, your claim will most likely be barred — courts enforce § 2401(b) strictly. But it is not automatically hopeless. In United States v. Kwai Fun Wong, 575 U.S. 402 (2015), the Supreme Court held the FTCA's time limits are not jurisdictional and can be equitably tolled where the claimant was diligent and an extraordinary circumstance prevented timely filing. Have an attorney evaluate the dates before you give up on the claim.

What is the difference between 28 U.S.C. § 2401(a) and § 2401(b)?

Section 2401(a) sets a general six-year deadline for most civil actions against the United States. Section 2401(b) is the FTCA-specific tort provision: two years to present the administrative claim and six months to sue after a mailed notice of final denial. VA and military medical malpractice claims are governed by § 2401(b).

Who is eligible to file an FTCA claim?

The injured person, that person's duly authorized agent or legal representative, or — where the negligence caused a death — the executor or administrator of the estate or anyone else entitled to bring the claim under state law (28 C.F.R. § 14.3). You need not be a veteran or a U.S. citizen. The limits that matter in practice are the "private person" liability test in § 1346(b)(1), the Feres bar on active-duty claims incident to service, and the categories § 2680 removes from the waiver.

What is the statute of limitations for claims brought under the Tucker Act?

Six years, under 28 U.S.C. § 2501, in the U.S. Court of Federal Claims. The Tucker Act covers contract, takings and money-mandating statutory claims and expressly excludes "cases sounding in tort," so it never governs a VA or military malpractice claim — those run through § 2401(b).

Does the statute of limitations apply to claims for deceased veterans?

Yes. If a veteran died due to medical malpractice, the surviving family members must still file their wrongful death claim within the statute of limitations period.

Can the statute of limitations be extended?

In limited circumstances, such as minority status, mental incapacity, or fraudulent concealment, the statute may be tolled. However, these exceptions are narrowly interpreted.

Can you get punitive damages under the FTCA?

No. Under 28 U.S.C. § 2674 the United States "shall not be liable for interest prior to judgment or for punitive damages." An FTCA claim recovers compensatory damages only. The one exception appears in the same section: where a death occurred in a state whose wrongful-death law provides only punitive damages, the United States is liable instead for actual or compensatory damages measured by the pecuniary injuries resulting from that death.

The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only. Readers should contact their attorney to obtain advice concerning any legal matter.

The author, EJ Archuleta, J.D., is a 13-year federal practice lawyer. He is licensed to practice law in the courts of the State of Texas, is a member of the State Bar of Texas, and is admitted to the United States District Court for the Western District of Texas. He has helped hundreds of military service members, veterans, and their families receive compensation for injuries and wrongful death caused by the Department of Veterans Affairs.

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• VA Malpractice Settlements vs. VA Disability Benefits →
• Standard Form 95 Guide →
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